rule that, by failing to enact in full the laws, regulations and administrative provisions necessary to ensure transposition of Directive 2006/24/EC of the European Parliament and the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC and, in any event, by not notifying those provisions in full to the Commission, the Federal Republic of Germany has failed to fulfil its obligations under that directive;

impose, under Article 260(3) TFEU, by reason of the infringement of the obligation to notify transposition measures, a penalty payment in the amount of EUR 315 036.54 per day on the Federal Republic of Germany, payable to the own resources account of the European Union;

order the Federal Republic of Germany to pay the costs of the proceedings.

Pleas in law and main arguments

The period within which the directive at issue had to be transposed expired on 15 September 2007.

By a judgement of 2 March 2010, the Bundesverfassungsgericht (German Federal Constitutional Court) ruled that the transposition measures adopted by the Federal Republic of Germany were unconstitutional and void. As a result, the German Government first informed the Commission that the directive had been partially transposed through legislation in force. Subsequently the German Government notified the draft version of a Law transposing the remaining provisions of the directive.

Since the draft concerned has not, as yet, been adopted, it is, according to the Commission, not open to dispute that the Federal Republic of Germany has failed to meet its obligation to transpose the directive in full. The abovementioned partial transposition is, in the Commission's view, insufficient to attain the objectives of the directive under Article 1. Finally, the Commission points out that, in its opinion, the draft Law notified to it by Germany is insufficient for purposes of full implementation of the directive.